Constitutional Law - Freedom of Speech - Ninth Circuit Upholds Public School's Prohibition of Anti-Gay T-Shirts

Article excerpt

CONSTITUTIONAL LAW--FREEDOM OF SPEECH--NINTH CIRCUIT UPHOLDS PUBLIC SCHOOL'S PROHIBITION OF ANTI-GAY T-SHIRTS. -- Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir.), reh'g en banc denied, 455 F.3d 1052 (9th Cir. 2006), vacated as moot, 75 U.S.L.W. 3472 (U.S. Mar. 5, 2007) (No. 06-595).

Although the Supreme Court decades ago announced that public school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," (1) the full extent of those rights has never been entirely clear. Recently, in Harper v. Poway Unified School District, (2) the Ninth Circuit addressed the limits of students' expressive freedom when it denied a preliminary injunction in a student's First Amendment challenge to his public high school's refusal to let him wear T-shirts bearing anti-gay statements. The court's approach, by focusing on the harm that statements do to listeners, risks giving school authorities wide latitude to restrict nondisruptive political speech. A better approach, and one more consistent with precedent, would be a speaker-focused intent standard, which would create neither a right not to be offended nor a right to harass.

In 2004, Tyler Chase Harper was a sophomore at Poway High School (PHS), a public school in Poway, California. (3) That year, PHS allowed the school's Gay-Straight Alliance to hold a "Day of Silence" designed to "teach tolerance of others, particularly those of a different sexual orientation." (4) Harper, on the Day of Silence, chose to wear a T-shirt to school bearing the words "I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED" on the front and "HOMOSEXUALITY IS SHAMEFUL 'Romans 1:27'" on the back. (5) He wore a similar shirt to school the next day. (6) On the second day, one of Harper's teachers noticed the shirt and asked him to remove it; Harper refused. (7) Harper was sent to the administrative office, where administrators told him his shirt was inflammatory and asked him again to remove it. (8) Harper refused and was required to stay in the school's front office for the rest of the day. (9) He was not suspended or otherwise disciplined. (10)

Harper filed suit in the United States District Court for the Southern District of California alleging violations of his rights to freedom of speech and the free exercise of religion, as well as of the Establishment, Equal Protection, and Due Process Clauses. (11) Harper moved for a preliminary injunction to prevent PHS from prohibiting him from making statements similar to those at issue in the case. (12) After being denied the injunction, (13) Harper filed an interlocutory appeal. (14)

The Ninth Circuit affirmed. Writing for a divided panel, Judge Reinhardt (15) rested his analysis on Tinker v. Des Moines Independent Community School District, (16) which held unconstitutional a school's suspension of students who wore black armbands in protest of the Vietnam War. (17) Judge Reinhardt interpreted Tinker to permit restriction of student speech that "impinges upon the rights of other students" or would cause "substantial disruption of or material interference with school activities." (18) Noting the Tenth Circuit's holding that "the 'display of the Confederate flag might ... interfere with the rights of other students to be secure and let alone,' even though there was no indication that any student was physically accosted with the flag," (19) the panel reasoned that "Harper's wearing of his T-shirt 'colli[des] with the rights of other students' in the most fundamental way." (20)

Judge Reinhardt wrote that "[p]ublic school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses." (21) Citing law review articles and social scientific studies for the proposition that the harassment gay students suffer in school harms their educational development and self-esteem, he reasoned that Tinker authorizes educational administrators to prevent such harm. …